March 12, 2018, the 2nd Circuit ruled NYDEC waived its authority under Section 401 of Clean Water Act by failing to deny the application within 1 year of filing, holding that the clock for government decision runs even if the application is administratively incomplete.
20180312 2nd Cir Opinion NYDEC failed to deny 401 certification app 1 yr Millennium Pipeline
This ruling need not concern the NJDEP in its review of the PennEast Pipeline, because in February 2018 the Department already timely denied the Pipeline’s application for a 401 Certification under the Clean Water Act.